BOARD DATE:	  4 December 2012

		DOCKET NUMBER:  AR20120010365 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his bad conduct discharge be upgraded to a general under honorable conditions discharge (GD).  

2.  The applicant states his discharge was unjust because he was never proven guilty or tried for what was charged.  

3.  The applicant provides no documentary evidence in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.



2.  The applicant enlisted in the Army National Guard on 11 July 1975, and was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  

3.  On 9 March 1978, the applicant was ordered to active duty for 18 months and 22 days.  His record documents no acts of valor or significant achievement.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP)      on 20 December 1978 for being absent without leave (AWOL) from 21 to          22 November 1978 and for willfully disobeying the lawful order of a superior noncommissioned officer (NCO).   

4.  On 16 March 1979, a special court-martial (SPCM) found the applicant guilty of violating the following articles of the Uniform Code of Military Justice (UCMJ) by committing the offenses indicated:

	a.  Article 86 (4 specifications) by failing to go to his appointed place of duty at the time prescribed on four separate occasions;

	b.  Article 90, by disobeying the lawful command of a superior commissioned officer; 

	c.  Article 91 (3 specifications, by disobeying lawful orders from superior NCOs on three separate occasions; 

	d.  Article 128, by assaulting an individual by striking him with a dangerous weapon; to wit, a knife; 

	e.  Article 134 (Charge 5), by possessing marijuana; and 

	f.  Article 134, by wrongfully communicating a threat.

5.  The resulting sentence of the SPCM was reduction to private/E-1, forfeiture of $100.00 per month for three months, confinement at hard labor for three months, and a BCD.  

6.  On 12 June 1979, in Headquarters, Fort Carson and 4th Infantry Division (Mechanized) SPCM Order Number 114, the convening authority approved the sentence imposed by the military judge and directed the applicant be confined at the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas or elsewhere as competent authority may direct.  

7.  On 21 December 1979, the United States Army Court of Military Review rendered an opinion that set aside and dismissed the guilty finding of charge V and its specification; however, it affirmed the remaining findings of guilty and the sentence.  

8.  SPCM Order Number 157, dated 20 June 1980, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, shows the sentence as affirmed through the appellate process was approved and the BCD portion of the sentence was ordered duly executed.  

9.  On 11 August 1980, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as a result of a court-martial with a BCD.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he completed 2 years, 6 months, and 14 days of creditable active service with 
99 days of lost time due to being AWOL and confinement.

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his BCD within that board’s 15-year statute of limitations.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 prescribes the policies and procedures for separating members with a dishonorable or a BCD.  It stipulates that a Soldier would be given a BCD pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.  

12.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested an upgrade of his BCD because it was unjust as a result of his not having been proved guilty or tried for what was charged.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant’s SPCM proceedings where he was convicted on several charges were accomplished in accordance with applicable law and regulation including a review through the appellate process.  Further, his record documents no acts of valor or significant achievement and his disciplinary history includes his acceptance of NJP and accrual of 9 days of AWOL.  

3.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  The evidence of record reveals no error or injustice related to the applicant's court-martial and/or his subsequent discharge.

4.  In view of the foregoing, based on the gravity of the offenses resulting in his SPCM conviction and BCD, his overall record of service is not sufficiently meritorious to support clemency and/or an upgrade of his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x______  ___x_____  _x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _  x _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120010365



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ABCMR Record of Proceedings (cont)                                         AR20120010365



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